Rogers v. Va. State Registrar

• Decision Date: 11 October 2019
• Docket Number: Civil Action No. 1:19-cv-01149 (RDA/IDD)
• Citation: 507 F.Supp.3d 664
• Parties: Sophie ROGERS, et al., Plaintiffs, v. VIRGINIA STATE REGISTRAR, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

507 F.Supp.3d 664

Sophie ROGERS, et al., Plaintiffs,

v.VIRGINIA STATE REGISTRAR, et al., Defendants.

Civil Action No. 1:19-cv-01149 (RDA/IDD)

United States District Court, E.D. Virginia, Alexandria Division.

Signed October 11, 2019

Victor Michael Glasberg, Victor M. Glasberg & Associates, Alexandria, VA, for Plaintiffs.

Toby Jay Heytens, Office of the Attorney General, Richmond, VA, for Defendant Virginia State Registrar.

Christopher Jason Falcon, Arlington County Circuit Court, Richard Cyril Sullivan, Jr., Bean Kinney & Korman PC, Arlington, VA, Toby Jay Heytens, Office of the Attorney General, Richmond, VA, for Defendant Arlington Circuit Court Clerk.

Richard Cyril Sullivan, Jr., Bean Kinney & Korman PC, Arlington, VA, Toby Jay Heytens, Office of the Attorney General, Richmond, VA, for Defendant Rockbridge Circuit Court Clerk.

Order

Rossie D. Alston, Jr., United States District Judge

This matter comes before the Court on several motions: Plaintiffs’ Motion for a Temporary Restraining Order, Plaintiffs’ Motion for Summary Judgment, and Defendants’ Motion to Dismiss. Dkt. Nos. 6, 17, and 29. For the reasons stated below, the Court DENIES Plaintiffs’ Motion for a Temporary Restraining Order as well as Defendants’ Motion to Dismiss, and GRANTS Plaintiffs’ Motion for Summary Judgment.

A. Procedural History

The following factual recitation is uncontested. In anticipation of their October 19, 2019, wedding, Plaintiffs Sophie Rogers and Brandyn Churchill sought a marriage license from the Clerk of Rockbridge County Circuit Court. In the process of completing the application for a marriage license, Plaintiffs Rogers and Churchill declined to provide their races as the application required.

Plaintiffs Ashley Ramkishun, Samuel Sarfo, Amelia Spencer, and Kendall Poole sought marriage licenses from the Clerk of Arlington County Circuit Court. Plaintiffs Ramkishun, Sarfo, Spencer, and Poole also declined to provide their races as the application required.

Consequently, none of the Plaintiffs were issued a marriage license. While it has been suggested that a reason for the denial was circumstances regarding data entry, the bottom-line is that, at a minimum, the marriage licenses could not be issued.

A Complaint was filed against the Clerk of Rockbridge County Circuit Court, the Clerk of Arlington Circuit Court, as well as the Virginia State Registrar on September 5, 2019. In light of their impending marriage, Plaintiffs Rogers and Churchill requested immediate relief via a Motion for Temporary Restraining Order.

All Plaintiffs argue that Va. Code Ann. § 32.1-267(A) is facially unconstitutional as it burdens their fundamental right to marry, constitutes compelled speech, and violates their right to privacy. Plaintiffs Ramkishun, Sarfo, and Poole also argue the statute is unconstitutional as applied as it burdens their right to be free from the badges and incidents of slavery. Consequently, Plaintiffs request that this Court deem the statute unconstitutional to the extent the statute "requires persons seeking to obtain a license to marry to state their ‘race.’ " Dkt. 1. Plaintiffs also request that this Court enjoin Defendants and all others acting in concert with them or at their direction from enforcing the statute at issue, direct that otherwise proper marriage licenses be processed, and that a revised application without the racial inquiry be disseminated. Dkt. 1.

Subsequently, Attorney General Mark R. Herring ("General Herring") circulated a "memorandum" regarding Virginia Code Ann. § 32.1-267 (A). Dkt. 31-2. General Herring concluded that the statute "does not require a clerk to refuse to issue a marriage license when the applicant declines to identify his or her race, and that clerks should issue a license regardless of an applicant's answer or non-answer to that inquiry." Relying on the interpretive canon of constitutional avoidance, General Herring concluded that applicants "may decline to provide an answer about race, and an officer issuing a marriage license may accept a marriage license from a couple who declines to answer a question about race." On September 13, 2019, an electronic communication from Defendant Virginia State Registrar, Janet Rainey, was forwarded to all Clerks of Court. Defendant Rainey advised that, based on General Herring's construction of the statute, she revised the application "so it is clear that applicants for a marriage license may decline [to] answer[ ] the question regarding their race." She then requested that the Clerks of Court use the attached revised application immediately.

Plaintiffs filed a Motion for Summary Judgment. Dkt. 17. Defendants then filed their Motion to Dismiss requesting that this Court dispose of the case on procedural grounds. Dkt. 29.

B. Historical Background

Before proceeding to the disposition of the case, it is appropriate to provide the historical underpinnings of the so called "racial classification methodology" which cause this case to be before this Court.

The origins of racial classification begin with Swedish botanist, zoologist, and physician, Carl Linnaeus. In Systema Natura , Linnaeus attempted to classify all living things by genus name and species name. Humans were divided into four taxa,¹ differentiated by skin color and traits: "Americanus, Asiaticus, Africanus, and Europeanus." Discussions of traits particular to each taxa revealed that more favorable traits belonged to the Europeanus taxa. The racial classification of "Caucasian" emerged in 1775, developed by German physician and naturalist, Johann Friedrich Blumenbach. He posited that Caucasians represented the ideal form of humanity.

These European-based concepts transferred across the Atlantic as evidenced by racialization² in the administration of the United States census and passage of naturalization laws. The first census was held in 1790. Racial classifications included free white persons, taxed American Indians, and other free persons. In 1820, the categories of slaves and free blacks merged into a single category: "Slaves and Free Colored Persons." After the Emancipation Proclamation was issued, the former slaves and descendants category was revised to include "Black, Mulatto." In 1890, that again changed into "Black, Mulatto, Quadroon or Octoroon." And in 1900, the category became "Black (Negro or of Negro Descent)."

In addition, as of 1790, only "free white persons" and, as of 1870, "aliens of African nativity and persons of African descent" could become naturalized. Several individuals brought suit contesting this "white requirement." This remained law until the passage of the Immigration and Naturalization Act of 1952.

Legal opinions contextualized the societal sentiment towards racialization. In Scott v. Sanford , 60 U.S. (19 How.) 393, 410, 15 L.Ed. 691 (1857), Chief Justice Taney penned:

Yet the men who framed this declaration were great men – high in literary acquirements – high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

Turning to racialization in Virginia, this so-called separatist mindset pervaded. See, e.g., Kinney v. Commonwealth , 71 Va. 858, 869 (1878). The Bureau of Vital Statistics ("Bureau") was established, and a subset of the data recorded included tracking marriage licenses. Prior to the abolition of slavery, marriages between white people and African Americans were deemed void. 31 Va. Code Ann. 109 § 1 (1849). In 1919, the General Assembly enacted § 5074, which required the Clerk of Court to record "whether [the applicant for the marriage license was] white or colored." Then, the Virginia Racial Integrity Act was enacted in 1924

during the period of extreme nativisim which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a ‘white person’ marrying other than another ‘white person, a prohibition against issuing marriage licenses until the issuing official is satisfied that the applicants’ statements as to their race are correct, certificates of ‘racial composition’ to be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial intermarriage.’

Loving v. Virginia , 388 U.S. 1, 6, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).

The Bureau promulgated applications for marriage licenses, requiring applicants to swear that the race selected was truly theirs and referenced the Racial Integrity Act of 1924. Walter Plecker served as the initial registrar of the Bureau. Plecker openly supported the Racial Integrity Act of 1924. When suspicious that applicants for marriage licenses were not forthright in disclosing their race, Plecker challenged their marriages and sought to have those individuals prosecuted. Accordingly, "race mixing" or miscegenation was not only unfavored in the Commonwealth of Virginia, it was and could be the subject of criminal prosecution.

Virginia's anti miscegenation law was challenged in Loving v. Virginia , 206 Va. 924, 147 S.E.2d 78 (1966). Relying on Naim v. Naim , 197 Va. 80, 87 S.E.2d 749, 755-56 (Va. 1955), remanded 350 U.S. 891, 76 S.Ct. 151, 100 L.Ed. 784 (1955), aff'd 197 Va. 734, 90 S.E.2d 849, appeal dismissed 350 U.S. 985, 76 S.Ct....